Justice Benjamin draws recusal line in major W.Va. case

John O'Brien Sep. 10, 2008, 2:00pm


CHARLESTON, W.Va. (Legal Newsline) - West Virginia Supreme Court Justice Brent Benjamin has maintained his participation in the cases of a major campaign supporter, but this year withdrew from a high-profile case that involved his former employer.

Benjamin recused himself from a $381 million case involving industrial DuPont, which is asking the Supreme Court to hear its appeal of the Harrison County verdict. He has drawn criticism for refusing to step down from cases involving Massey Energy and CEO Don Blankenship, who spent millions supporting Benjamin's 2004 campaign.

Benjamin was absent Tuesday from the hearing of the first of three appeal requests. He disqualified himself April 2, following a motion filed by the plaintiffs.

"Pursuant to Canon3(E)(1)(b) of the Code of Judicial Conduct, please be advised that I voluntarily disqualify myself from participating in the above-referenced case," Benjamin wrote.

The owner of a bankrupt coal company, Hugh Caperton, says the U.S. Supreme Court should decide if Benjamin should have stayed on the bench when Massey's appeal of a $50 million verdict in favor of Caperton's company proved successful.

Blankenship spent more than $3 million promoting Benjamin in his 2004 race against former Justice Warren McGraw, brother of state Attorney General Darrell McGraw, through an organization called "For the Sake of the Kids."

A Boone County jury awarded $50 million to Caperton in his case against Massey, a dispute over a broken coal supply contract.

However, the state Supreme Court overturned the verdict in November with a 3-2 vote, then again by the same vote after Chief Justice Spike Maynard recused himself.

Photographs had surfaced of Maynard and Blankenship on vacation in Monaco. The two, lifelong friends from Mingo County, said they were coincidentally vacationing at the same place at the same time, and Maynard provided documentation to show he paid his own way.

Caperton, throughout, complained that Benjamin should have taken himself off the case. Supreme Court Justice Larry Starcher agreed, recusing himself in the hopes Benjamin would do the same.

"The motion seeking disqualification comes over three years after the 2004 election and focuses entirely on that election," Benjamin wrote. "It contains nothing about this Justice's record on the Court.

"There are no allegations that this Justice has or has had any relationship with Mr. Blankenship or any party in this litigation, or that he ever represented Mr. Blankenship or any Massey company in his 22-plus years of private practice. Nor is this Justice aware of any basis by which this Justice should disqualify himself."

While Benjamin is viewed as a pro-business influence on the Court, he voted against hearing Massey's appeal of a $220 million verdict against Massey.

He also agreed with the plaintiffs (residents of a Harrison County town that alleges DuPont dumped cadmium, arsenic and lead into their environment) and stepped away from their case, which could be the most important of the fall term.

Even Gov. Joe Manchin has filed an amicus brief in it, urging the Court to review the $196 million punitive damages award.

DuPont fruitlessly opposed the plaintiffs' motion. The plaintiffs pointed to Benjamin's former employment at Charleston firm Robinson & McElwee, representing defendant T.L. Diamond & Co.

In fact, Benjamin was at the firm when it filed an answer to the plaintiffs' complaint.

The jury verdict, though, found T.L. Diamond was not liable in any way, so DuPont argued the firm's role in the case was too small to have Benjamin recuse himself.

From Legal Newsline: Reach John O'Brien by e-mail at john@legalnewsline.com.

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